A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Please come and join Michelle Kinney and me on Sunday, July 10, 2016 from 2:00 p.m. to 2:30 p.m. at the Pride Festival for our presentation – Before the U Haul – Family Law for Queers:

Top ten tips on co-habitating and co-parenting.

Insight on: legal rights and responsibilities, property/debt division and support, queers having kids, assisted reproduction and fertility law.
Workshop Leader: Michelle Kinney is a lawyer with Cassels Murray, practicing in the area of family and fertility law. As one of the architects of the BC Family Law Act, Michelle has in-depth knowledge of BC’s family law. Michelle is a member of Fertility Law BC, which specializes in helping people starting a family through assisted reproduction.

There will be prizes for participation so come prepared to speak up and have fun!

In family law cases, most notably those dealing with parenting matters, affidavits can be long and detailed.

The majority of situations require a necessary exercise of judgment when determining what should and should not be included in affidavit materials before the court.

Recently, the Honourable Mr. Justice Pazaratz, of the Ontario Superior Court of Justice, wrote a very helpful decision opining on the Applicant father’s inclusion of a series of sexually explicit selfies of the mother in affidavit material (which he had retrieved from the mother’s discarded cell phone).

1. Do nude pictures of parents help judges decide who should get custody?

2. A silly question?

3. Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?

4. And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

5. If the objective was to humiliate the mother, undoubtedly the father succeeded.

6. But how does humiliation help in family court?

7. How does irrelevant and scandalous information help a judge determine the best interests of the child?

8. More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation?

a. How will this family ever heal?
b. How will the parents ever again be able to get along?
c. Can cheap shots ever be forgiven?

9. Separating parents are already in crisis. Our court process can either make things better or worse. And our success will hinge in part on our ability to address the modern realities of technology and social media.

10. Between e-mails, Facebook, Twitter, texts and selfies — privacy and discretion seem a thing of the past. These days there’s no shortage of really embarrassing stuff couples can dredge up against one another — if that’s really the path we want to encourage.

11. But what about relevance (never mind dignity)?

12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:

a. Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
b. Intimidating and threatening behaviour often becomes self-evident in texts.
c. A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
d. It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them.

13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.

14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.

15. But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.

16. Big deal.

The Court went on to order:

35. The photographs and texts attached to the Applicant’s affidavit dated March 15, 2016 are struck from the record. They are to be removed from the court file immediately by court staff and returned to the Respondent’s solicitor. The Applicant shall not allow any other person (including the children) to view these materials. He shall not disseminate any graphics or images from the cell phone to any person other than legal counsel. This includes a prohibition against posting any of these materials on line. The Applicant shall deposit the cell phone with his lawyer pending further order.

The above decision highlights the discretion that is necessary and important when considering what should and should not be included in affidavit material submitted to the courts. As noted by the Honourable Mr. Justice Pazaratz, there are times when social media is helpful in assisting the court in making decisions on a contentious issue (see paragraph 12) and times when it is of no value at all. Materials only aimed at causing embarrassment or inflaming matters between the parties should not be included and may have an adverse impact on the outcome for the party putting the irrelevant information forward.

Also – it is very important to consider children (both young and grown) when submitting explicit materials to the courts. In some jurisdictions, such as Alberta, it is generally possible for any person to obtain court documents upon submitting the necessary forms. During my time practicing in Alberta, I recall a friend advising me she was going to order the documents from her parent’s divorce some 25 years earlier (I STRONGLY advised against this course of action). Make sure to turn your mind to the impact reading an affidavit might have on your adult child if they were ever to review it.

If everything you know about surrogacy is limited to Baby Mama the movie, and you are interested in learning more, you MUST check out this website – it is a wealth of information.

The site is an easy to use resource for fertility law in British Columbia and Canada including sperm donation, egg and embryo donation and surrogacy.

The text is straightforward and provides practical and accurate information: it breaks things down to the basis:

Let’s start with the lay of the land. From the point of view of BC law, assisted reproduction is such things as:

Getting pregnant using home insemination with a friend as the sperm donor
In vitro fertilization (IVF), where conception of the embryo takes place in a lab and the embryo is then transferred to a woman’s uterus
Artificial insemination (intrauterine insemination/IUI) with a spouse’s sperm to increase the change of pregnancy
Having a child with the help of a surrogate who will carry the fetus until birth
Conceiving a child with the help of donated sperm, eggs or embryos
Assisted reproduction is not sexual intercourse. In fact, BC’s Family Law Act specifically defines assisted reproduction as “a method of conceiving a child other than by sexual intercourse”.

Many different people use assisted reproduction: same-sex couples, heterosexual couples, single people wanting to parent, and couples where a partner is transgender.

There are both federal and provincial laws about assisted reproduction. The federal laws essentially focus on the ethics and safety of assisted reproduction: what we are and are not allowed to do in Canada. Provincial law focuses more on parentage: who the legal parents are of the children born using assisted reproduction. And of course there are other laws and regulations governing the professionals and clinics who provide assisted reproduction services.

“Ms. Cochard’s experience, expertise and notable dedication to community service and professional development make her an excellent addition to Alberta’s judiciary. I congratulate her on this appointment.”

Kathleen Ganley, Minister of Justice and Solicitor General

We will certainly miss seeing Renee at the office every day but look forward to keeping in touch and reading her decisions!

Krystle has strong negotiation skills and experience, as well as trial experience at both the Provincial and Supreme Court levels in British Columbia.

Krystle graduated from the University of British Columbia in 2009 where she was a Director of the Law Students’ Society and President of the International Law Students’ Society. She has been a member of the Executive Committee for the Canadian Bar Association – BC Branch for 3 years, the Chair of the Women Lawyers’ Forum – Vancouver Island, and has a strong connection to the legal community through her local involvement with the Victoria Bar Association.

We are fortunate to have Krystle as part of our team. Krystle will be practicing in the areas of family and estates law.

Earlier in March, this newsletter provided a very good summary of the case of Hathaway v. Hathaway (2014 BCCA 310).

In this case, Mr. Hathaway (a high income earner) had been ordered, by the British Columbia Supreme Court, to pay child support of $12,814.00 per month and spousal support of $24,124.00 per month. At the trial level Mr. Hathaway’s income was determined to be one million dollars a year by the Honourable Mr. Justice Abrioux.

Mr. Hathaway, at the Court of Appeal, contended that the trial judge erred in three respects (failing to consider Section 11 (which sets a ceiling for incomes over $350,000.00 per annum) and Section 12 (relating to property division) of the Spousal Support Advisory Guidelines, failing to consider the provisions of the Federal Child Support Guidelines regarding incomes over $150,000.00 (Section 4), and the principles relating to reapportioning family assets). Mr. Hathaway’s appeal was dismissed by the Court of Appeal and leave to the Supreme Court of Canada was also dismissed.

The case of Hathaway highlights the importance of considering/arguing Section 4 of the Federal Child Support Guidelines and Section 11 of the Spousal Support Advisory Guidelines at a trial level. A failure to do so will limit the ability to make such arguments or considerations at an appeal level (as per paragraph 34 of the Court of Appeal Decision).

The upshot of this case, from my perspective, is:

Reading the Child Support Guidelines and the Spousal Support Advisory Guidelines is a free and useful exercise if support issues are at play in your family law matter (regardless of your income);

If you are dealing with a case where incomes are over $150,000.00 per annum pay special attention to Section 4 of the Child Support Guidelines;

If you are dealing with a case where incomes are over $350,000.00 per annum pay special attention to Section 11 of the Spousal Support Advisory Guidelines;

It is helpful to get advice from an accountant in a case where you are working to determine an appropriate guideline income for support purposes (I encourage my clients to consult with an accountant regarding determination of income for support purposes regardless if they are paying or receiving support – it is very helpful); and